Federal Court of Australia

Jolly v Sharma [2025] FCAFC 20

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    The appellant appeals from the judgment of a single judge of the Court in Jolly v Sharma [2024] FCA 171. By that judgment, the primary judge dismissed the appellant’s proceeding which sought declaratory and other relief against the respondents.

2    The proceeding stems from a long-standing dispute within the Australian Rail, Tram and Bus Industry Union (the Union). In the course of that dispute, the Victorian Branch of the Union passed two resolutions that affect the way funding for the Victorian Locomotive Division (VLD) is to be determined. That led the appellant, who is the Secretary of the VLD, to apply for relief including, relevantly, declarations that the rules of the Union (the Rules) are oppressive, unreasonable and unjust and, therefore, void.

3    The appellant’s grounds of appeal allege, in summary, that the primary judge erred by failing to hold that the Rules impose conditions, obligations or restrictions upon members within the VLD that are oppressive, unreasonable or unjust, in that:

(a)    the Rules fail to make specific provision for funds to be provided to the VLD to enable it to carry out its prescribed functions under the Rules;

(b)    the Rules do not contain any requirement for the VLD to receive a sufficient proportion of membership contributions to enable the VLD to effectively discharge its prescribed duties and functions under the Rules.

4    It is necessary to summarise the relevant facts, the statutory provisions, the Rules and the reasons of the primary judge in order to give context to the parties’ submissions.

Factual background

5    The appellant is the Secretary of the VLD. The first respondent is the Branch Secretary of the Victorian Branch of the Union. They are members of the Victorian Branch Executive. The second to twenty-third respondents are, or were at the relevant times, also members of the Victorian Branch Executive.

6    The first to fifteenth and twenty-third respondents made submissions in the appeal, but the remaining respondents filed a submitting notice and did not otherwise participate in the appeal. That division seems to reflect factional divisions within the Victorian Branch. It is nevertheless convenient to refer to the first to fifteenth and twenty-third respondents as “the respondents”.

7    The VLD became part of the Union as a result of an amalgamation between the Australian Federated Union of Locomotive Enginemen (AFULE), the Australian Railways Union, the Australian Tramway and Motor Omnibus Employees’ Association and the National Union of Rail Workers of Australia which took effect on 1 March 1993. The VLD reflected the Victorian branch of the AFULE.

8    In practice, the VLD largely operates as a separate entity within the Union. The VLD provides assistance and representation to the members allocated to the VLD in industrial matters such as enterprise agreement negotiations.

9    The primary judge observed that there is long-standing discord between, on one hand, the VLD and the Victorian Tram and Bus Division, and, on the other hand, the other four Victorian branch divisions. The first to fifteenth respondents are aligned with the latter, while the sixteenth to twenty-second respondents are aligned with the former.

10    In an attempt to stem the division, the Victorian Branch Executive passed a resolution on 8 February 2017 (the 2017 Resolution) to establish a “shared” bank account in the name of the VLD (the Shared Account). Under the 2017 Resolution, all VLD members would pay their subscriptions into the Shared Account; Victorian Branch and VLD officials would jointly authorise transfers from the account; the VLD would transfer funds to the Victorian Branch to pay for shared costs on a monthly basis; and the VLD would transfer all remaining funds to the general account of the VLD each month.

11    The primary judge observed that under the arrangement established by the 2017 Resolution, rather than have the Victorian Branch Executive apportion funds to “shared” expenses and then pay whatever remained to the VLD, membership subscriptions were instead paid into the Shared Account. The Shared Account was partly, if not effectively, controlled by the VLD. Funds for “shared” expenses were paid from the Shared Account to the Victorian Branch Executive only when agreed.

12    The appellant deposed that the 2017 Resolution ensured that both the VLD and the Victorian Branch would receive a sufficient portion of the funds derived from the VLD members’ subscriptions to enable the Victorian Branch and the VLD to meet their respective expenses and to function and carry out their duties under the Rules effectively.

13    On about 2 February 2023, the appellant made an application to the Fair Work Commission under s 94 of the Fair Work (Registered Organisations) Act 2009 (Cth) (the Act) for a ballot to be held to decide whether the VLD should withdraw from the Union and become a separate organisation. In its response of 5 May 2023, the Union claimed that the VLD would not be able to adequately promote and protect the economic and social interests of its members. The reasons given for that claim included an assertion that funds in the Shared Account were in fact the property of the Victorian Branch because the 2017 Resolution was contrary to the Rules, ultra vires and of no force and effect.

14    Subsequently, the Branch Executive passed two resolutions at a meeting on 9 August 2023 (the August Resolutions) by which it was sought to terminate the VLD’s control over the Shared Account.

15    The first of the August Resolutions was in the following terms:

1.    To direct the officers of the Victorian Locomotive Branch Division to take all steps necessary to:

i.    change the name of the Shared Account to “Australian Rail, Tram and Bus Industry Union - Victorian Branch” to bring it into conformity with Rule 21 (7); and

ii.    change the signatories to the Shared Account to Vik Sharma (as Branch Secretary), Darren Lamont (as Branch President) and Brian Penza (as Assistant Branch Secretary) to bring them into conformity with Rule 23(3).

2.    That the funds in the Shared Account shall hereafter only be disbursed or otherwise dealt with upon a resolution of the Branch Council or the Branch Executive, passed after the date of this resolution and in conformity with Rule 23(4).

16    The second of the August Resolutions was in the following terms:

a.    The Branch Divisional Secretary of the Victorian Locomotive Branch Division shall in writing notify the Branch Secretary of the compliance with the said Resolution within seven days of the date of this meeting; and

b.    in the event that the Branch Secretary does not receive notification within seven days, the Branch Secretary is hereby authorised and directed to himself communicate with the bank at which the Shared Account is held to:

i.    change the name of the Shared Account to “Australian Rail, Tram and Bus Industry Union- Victorian Branch” to bring it into conformity with Rule 21(7); and

ii.    change the signatories to the Shared Account to Vik Sharma (as Branch Secretary), Darren Lamont (as Branch President) and Brian Penza (as Assistant Branch Secretary) to bring them into conformity with Rule 23(3).

17    The appellant’s application before the primary judge sought, inter alia, declarations that the August resolutions were invalid and of no effect and declarations that the Rules were oppressive, unreasonable and unjust, and therefore void.

The relevant statutory provisions

18    The appellant’s proceeding was brought under ss 163(1) and 164B(3) of the Act.

19    Section 5 of the Act has the heading, “Parliament’s intention in enacting this Act”, and provides, relevantly:

(1)    It is Parliament’s intention in enacting this Act to enhance relations within workplaces between federal system employers and federal system employees and to reduce the adverse effects of industrial disputation.

(2)    Parliament considers that those relations will be enhanced and those adverse effects will be reduced, if associations of employers and employees are required to meet the standards set out in this Act in order to gain the rights and privileges accorded to associations under this Act and the Fair Work Act.

(3)    The standards set out in this Act:

(a)    ensure that employer and employee organisations registered under this Act are representative of and accountable to their members, and are able to operate effectively; and

(b)    encourage members to participate in the affairs of organisations to which they belong; and

(c)    encourage the efficient management of organisations and high standards of accountability of organisations to their members; and

(d)    provide for the democratic functioning and control of organisations; and

(e)    facilitate the registration of a diverse range of employer and employee organisations.

20    Chapter 5 of the Act has the heading “Rules of Organisations”. Section 140(1) requires that, “an organisation must have rules that make provision as required by [the] Act”.

21    Section 141(1) requires that the rules of an organisation must provide for specified matters, including the powers and duties of the committees of the organisation and its branches and the holders of offices; the manner in which the property of the organisation is to be controlled; and the conditions under which funds may be spent.

22    Section 142(1)(c) is central to this appeal. It provides, relevantly, that the rules of an organisation:

…must not impose on applicants for membership, or members, of the organisation, conditions, obligations or restrictions that, having regard to Parliament’s intention in enacting this Act (see section 5) and the objects of this Act and the Fair Work Act, are oppressive, unreasonable or unjust;

23    Section 143 of the Act requires that the rules of an organisation must make provision for, inter alia, the election of the holder of each “office”. The expression “office” is defined in s 9 to include: an office of president, vice president, secretary or assistant secretary of the organisation or branch; the office of a voting member of a collective body of the organisation or branch which, amongst other things, has power in relation to management of the affairs of the organisation or branch; and an office, the holder of which is, under the rules of the organisation or branch, entitled to participate directly in management of the affairs of the organisation or branch.

24    Section 154A of the Act provides, relevantly, that the rules of an organisation “may provide for the autonomy of a branch in matters affecting members of the branch only”.

25    Section 163 of Act provides, relevantly:

163    Rules contravening section 142

Application for order declaring rules contravene section 142

(1)    A member, or an applicant for membership, of an organisation may apply to the Federal Court for an order under this section in relation to the organisation.

(2)    If the application is made by a member, the order under this section may declare that the whole or a part of a rule of an organisation contravenes section 142 or that the rules of an organisation contravene section 142 in a particular respect.

…

Effect of order

(6)    Where an order under this section declares that the whole or a part of a rule contravenes section 142, the rule or that part of the rule, as the case may be, is taken to be void from the date of the order.

Appropriate authority may alter organisation’s rules

(7)    Where:

(a)    the Court makes an order declaring as mentioned in subsection (2) or (3) in relation to the rules of an organisation; and

(b)    at the end of 3 months from the making of the order, the rules of the organisation have not been altered in a manner that, in the opinion of the appropriate authority, brings them into conformity with section 142 in relation to the matters that gave rise to the order;

the appropriate authority must, after giving the organisation an opportunity, as prescribed, to be heard on the matter, determine, by instrument, such alterations of the rules as will, in the appropriate authority’s opinion, bring the rules into conformity with that section in relation to those matters.

Note:    For the meaning of appropriate authority see subsection (12).

26    Section 164 of the Act provides, relevantly:

164    Directions for performance of rules

Application for order directing performance of rules

(1)    A member of an organisation may apply to the Federal Court for an order under this section in relation to the organisation.

…

(9)    In this section:

order under this section means an order giving directions for the performance or observance of any of the rules of an organisation by any person who is under an obligation to perform or observe those rules.

27    Section 164B provides, relevantly:

(3)    Where the Court, in considering an application under section 164 or 164A, finds that the whole or a part of a rule of the organisation concerned contravenes section 142 or that the rules of the organisation concerned contravene that section in a particular respect, the Court may, by order, make a declaration to that effect.

28    Chapter 7 has the heading, “Democratic control”. Section 182(1) provides for elections, for an office in an organisation, or branch of an organisation, to be conducted by the Australian Electoral Commission, subject to an exception in s 186. The Act then sets out extensive requirements and procedures for the conduct of elections.

The Union’s Rules

29    The Union is an organisation of employees registered under the Act. As is required under s 140(1) of the Act, the Union has rules.

30    Part II of the Rules has the heading, “Structure and Government”. Rule 6 deals with the structure and organisation of the Union. Rule 6(1) requires that the Union, “shall be organised principally on a National, a Branch, a Sub-Branch, a National Divisional, a Branch Divisional and a Branch Sub-Divisional basis”.

31    Rule 6(3) provides for there to be six State Branches. The Branch relevant to these proceedings is the Victorian Branch. Rule 6(8) provides that, “The Victorian Branch shall comprise all members whose usual place of work is located within the State of Victoria”.

32    Rule 6(11) identifies six National Divisions within the Union, including the National Locomotive Division. The National Locomotive Division comprises, “members employed in railway train running”. Under rule 6(13), “Each National Division shall be divided into Branches, known as Branch Divisions and the boundaries of such Branch Divisions shall correspond with the Branches of the Union”. Rule 156(2) explains that there are six Branch Divisions of the Victorian Branch, including the VLD.

33    Rule 8(1) provides that, “Each member shall be allocated to that National Division which most closely accords with his/her work functions”.

34    Under rule 10(1), persons eligible to be members may apply for membership by making application to the Branch Secretary of the relevant Branch. Rule 11(1) provides:

(1)    A member shall pay such subscription rates, entrance fees, and National levies as are determined from time to time by the National Council together with such Branch levies as are determined from time to time by the Branch Council of the member’s Branch. All monies due shall be paid to the relevant Branch Secretary.

35    Rule 42(1) provides that, “the Branch Council shall be the highest deliberative body in the Branch”. It also provides that, subject to the Rules and policies or decisions of the National Council or National Executive, the Branch Council has power to do all things in the Branch that are within the Union’s objects or incidental thereto, including expending such amounts as may be necessary to fulfill the objects of the Union within the Branch.

36    Rule 43 provides that the Branch Executive exercises, subject to the policies and decisions of the National Council, the National Executive and the Branch Council, all of the powers of the Branch Council from time to time (except the power to alter Parts X to XVI of the Rules).

37    Rule 58(1) sets out the functions of each Branch Divisional Committee, and thereby describes the functions of each Division. The rule provides:

(1)    Each Branch Division shall have a Branch Divisional Committee. Subject to these Rules and the policies and decisions of the National Council, the National Executive, the Branch Council and the Branch Executive, the Branch Divisional Committee shall have management of those aspects of the Branch’s operations which affect members of the Branch Division only.

38    Rule 159(1) also requires that each Victorian Branch Division shall have a Divisional Committee.

39    The structure and composition of the Branch governing bodies and other committees is relevantly described in rule 9(3) as follows:

Branch Council:

Members of the Branch Executive

Branch Divisional and Regional Delegates to the Branch Council

Branch Organisers/Branch Divisional Organisers

Branch Executive:

Branch President

Branch Vice-President

Branch Secretary

Assistant Branch Secretary

Branch Divisional Presidents

Branch Divisional Secretaries

Branch Organisers/Branch Divisional Organisers

Branch Divisional Committees:

Branch Divisional President

Branch Divisional Vice-President

Branch Divisional Secretary

Assistant Branch Divisional Secretary

Representatives from the Sub-Divisions

Branch Divisional Organisers

Branch Secretary (Ex officio)

40    Part IV of the Rules deals with “Finances”. Rule 21(1) provides that:

The Funds of the Union shall comprise the National Fund, the Branch Funds and the Branch Divisional Funds. Branch Divisional Funds including composite Branch Divisional Funds may be established in relation to all or any Branch Divisions.

41    Under rule 21(4), a Branch Fund shall be managed by the Branch Council and Branch Executive and consists of, inter alia, the amount of subscriptions received by the Branch, less any capitation fees payable to the National Organisation. The rule also provides that the Branch Fund:

…shall be used for the administration and management of the Branch and for any other purpose that the Branch Council or Branch Executive may from time to time direct towards attainment of any of the objects of the Union within the Branch.

42    Rule 21(8) provides that Branch Divisional Funds shall be managed and controlled by the Branch Divisional Committee. Under rule 21(8), such Branch Divisional Funds include “monies received from the Branch”.

43    Rules 21(9) and (10) provide:

(9)    All liabilities arising out of the administration and management of the Branch Division including those liabilities arising from the control and management of real property within the Branch Divisional Fund, shall be the responsibility of the Branch Division.

(10)    Notwithstanding the provisions of Sub-Rules 21(8) and 21(9), where all or part of the expenses of the administration and management of a Branch Division are met from the Branch Fund, the Branch shall be entitled to be reimbursed for such expenditure from any interest, rents or dividends derived from the investment or use of the Branch Divisional Fund of that Branch Division.

44    Rule 22(4) provides:

(4)    All monies payable by members of the Union by way of entrance fees, subscriptions, levies or fines shall be paid to and collected by the Secretary of the Branch to which the member belongs. Each Branch Secretary shall receive and deal with such monies in accordance with these Rules.

The reasons of the primary judge

45    The primary judge observed that the appellant had raised the following arguments:

(a)    The Rules are oppressive, unreasonable and unjust contrary to s 142(1)(c) of the Act in two ways: first, in that the Rules purport to require the VLD to fulfil various obligations, yet make no provision guaranteeing it funds that would enable them to be fulfilled; and, second, in that the Rules impermissibly operate such that the will of individual Divisions (such as the VLD) may be overborne by larger divisional alliances.

(b)    The August Resolutions involved non-compliance with the Rules; the resolutions being based upon an erroneous factual proposition that the 2017 Resolution was contrary to the Rules.

(c)    The first respondent took “adverse action” (within the meaning of Part 3-1 of the Fair Work Act 2009 (Cth)) against the VLD or its members by securing the 9 August Resolutions because the appellant had made the s 94A application.

46    The primary judge rejected each of these arguments. The appellant does not challenge his Honour’s rejection of the argument that the Rules were oppressive, unreasonable or unjust because they permitted the Branch Council and the Branch Executive to be dominated by larger Branch Divisions with no countervailing protections for the smaller Branch Divisions. Neither does the appellant challenge his Honour’s rejection of the third argument. It is therefore unnecessary to discuss those aspects of the reasons.

47    It is, however, relevant to mention the primary judge’s reasons for rejecting the appellant’s second argument even though they are not the subject of any challenge in the appeal. The appellant argued that the August Resolutions were invalid because they were passed on the basis of the erroneous understanding of the Victorian Branch Executive that the 2017 Resolution was invalid. His Honour found, relevantly, the arrangement involving the Shared Account set up by the 2017 Resolution was contrary to rule 21(4) (funds of a Branch are to be managed by the Branch Council and the Branch Executive), rule 21(7) (property comprising a Branch Fund must be held, deposited or invested in the name of the Branch) and rules 23(3) and (4) (authority to disburse Branch Funds is conferred upon the Branch Council or specified members of its executive).

48    In respect of the appellant’s argument that the Rules are oppressive, unreasonable and unjust because they fail to guarantee Branch Divisions funds to discharge their obligations, the primary judge observed at [77] that two high-level questions arose, namely:

(1)    do the … Rules relevantly impose upon members of the VLD a condition, obligation or restriction related to the funding of branch divisions; and, assuming that they do,

(2)    does that condition, obligation or restriction (or do those conditions, obligations or restrictions) qualify as oppressive, unreasonable or unjust?

49    The primary judge observed that the parties had made no submissions upon the first question and appeared to have assumed that any failure of the Rules to make provision for guaranteed funding for the VLD qualified as the imposition of a condition, obligation or restriction upon VLD members. His Honour expressed doubt about the validity of the parties’ assumption, but decided that it was appropriate to proceed on the basis of that assumption.

50    As to the second question, the primary judge observed at [82] that within the structure created by the Rules, Branches sit higher in the hierarchy than Branch Divisions, as is reflected in rule 58 which contemplates that a Branch Division’s management of its affairs is subject to the policies and decisions of a relevant Branch Executive. His Honour reasoned at [83] that the policies and decisions of a Branch Executive necessarily extend to include policies and decisions concerning the funding of Branch Divisions, and that the scope or nature of the managerial responsibilities the Rules impose upon Branch Divisions is necessarily determined in part by such policies and decisions. His Honour noted at [84] that the appellant took issue with that proposition, contending that it would be “antithetical” to the intent of rule 58 to interpret the supervisory role of the Branch Executive as allowing it to assume functions that are “explicitly given to the Branch Divisional Committee”. His Honour considered at [85] that while there may or may not be something in that contention, at least insofar as concerns the capacity of the rule to authorise the wholesale assumption by a Branch of what would otherwise be a Branch Division’s responsibility, that was not what was presently in issue. That was because the complaint was not that the Rules authorise any wholesale assumption of responsibility; but was only that the rules make no provision guaranteeing Branch Divisions income commensurate with their responsibility.

51    The primary judge observed at [86] that the Act does not require that each and every administrative or executive body within an organisation that stands charged with some measure of managerial responsibility should, by force of the organisation’s rules, possess any particular funding entitlement. His Honour considered there to be an obvious reason why that should be so, namely that a guarantee of funding would inevitably defy precise articulation. His Honour posed rhetorical questions about how much money would be enough to enable a Branch Division to undertake its functions, and what criteria might be applied to determine a fair allocation as between Branches and their Divisions. His Honour considered that to include within organisational rules a vague but enforceable covenant about how activities might be funded would invite unending factional disputation, which could not be reconciled with the objectives of the Act.

52    The primary judge considered at [87] that, accepting there might be scope for judicial intervention at the margins, the funding priorities of organisations are for organisations to determine, as is the manner in which they might determine them. The Rules establish a hierarchy of executive decision-making bodies and invest the various levels with various responsibilities. In the case of Branches, that responsibility extended (subject to minor exception) to the receipt and disbursement of membership income. This was, his Honour observed at [88], how the Union had resolved to manage its financial affairs, or those of them concerned with the receipt and disbursement of membership subscriptions.

53    The primary judge considered at [88] that the absence of provision in the Rules for guaranteed Branch Division funding merely reflects two realities of modern industrial representation, namely that an organisation’s funding priorities must be set at some administrative level, and are necessarily fluid and guided by competing interests or policy considerations. His Honour repeated that the alternative would very likely invite unending disputation as to the funding amounts that should be guaranteed or the criteria by which guarantees should be quantified.

54    The primary judge held at [90] that the failure of the Rules to make explicit provision guaranteeing a level of funding for Branch Divisions was not “oppressive, unreasonable or unjust” pursuant to s 142(1)(c) of the Act.

The appellant’s submissions

55    The appellant submits that the Rules create an internal inconsistency by imposing obligations on the Branch Divisions to administer the affairs of their members, including providing industrial representation and paying all liabilities arising from the administration and management of the Branch Divisions, yet make no provision for them to have the revenue to fund the discharge of those duties. It is submitted, in that way, the Rules impose on the members of the VLD obligations or restrictions that are oppressive, unreasonable or unjust.

56    The appellant challenges the primary judge’s reasoning at [82]–[85] that the absence of any provision in the Rules for funding of Branch Divisional activities is explained by the capacity of higher governing bodies to limit the extent of such activities. The appellant argues that his Honour’s reasoning wrongly assumes that the governing bodies of the Union can, in their discretion, diminish the responsibilities expressly conferred on the Branch Divisional Committees by the Rules, when to do so would amount to an improper exercise of power.

57    The appellant submits that the primary judge’s reasoning at [86], that the Act does not make express provision for funding of administrative bodies within an organisation, is not to the point. It is submitted that s 142(1)(c) is not confined to provisions in rules that are mandated by the legislation, and instead applies to the rules actually adopted.

58    The appellant submits that at [86] his Honour erroneously assumed that provision for funding would need to be precisely articulated in the Rules, which would pose insurmountable difficulties. That assumption, it is submitted, fails to account for rule 23(3), which provides that 14.5% of subscription income received by a Branch will be payable as a capitation fee to the National Office each year. That is said to be a precise articulation of financial arrangements to enable the operation of the National Office, and a powerful demonstration of how the Rules could be amended following a declaration being made under s 163 of the Act. For example, the Rules could similarly prescribe an appropriate proportion of the received subscriptions to be paid to the State Branch to cover its operating expenses, with the remainder being returned to the relevant Divisional Branch.

59    The appellant submits that the primary judge’s reasoning, at [87]–[88], fails to take into account that rules 21(9) expressly put in place an obligation on a Branch Division to manage the operations of the State Branch which affect members of the Branch Division and make the Branch Divisions responsible for all liabilities rising out of the administration and management of the Branch Division. The appellant argues that “unending disputation” of the kind identified by the primary judge at [88] is more likely where there are administrative discretions rather than prescribed protections.

60    The appellant submits that for the Rules to remain silent on the funding of those activities in the Branch Divisions is clearly oppressive, unreasonable or unjust.

The respondents’ submissions

61    The respondents submit that under the structure created by the Rules, the principal administrative unit in each State is the Branch. All members in a given State are allocated to the respective Branch, which is responsible for determining the organisation and structure of the Union’s affairs in the relevant State. The members of the Branch are given democratic control of the Branch by both the direct election of certain Branch officials and the collegiate election, on a proportional basis, of Branch Executive and Branch Council members.

62    The respondents submit that rule 58(1) makes it plain that the responsibilities of the Branch Divisions are contingent upon decisions taken by the National Council, National Executive, Branch Council or Branch Executive. They submit that the management of a Branch Division’s affairs must be consistent with the overall management of the Union in the best interests of the members. It also must be subject to the means of the Union from time to time. That is, if the interests of the Union as a whole require that the resources of the Union be deployed for a particular purpose, such as a large or important industrial dispute concerning one part of the membership, any obligations imposed by rule 58 would be read subject to the capacity for the Branch to operate having regard to its resources. The respondents submit that the obligation imposed in rule 58 on the Branch Division is subject to each of those decisions, or, put differently, each of those decisions informs the nature and extent of the responsibility conferred upon the Branch Divisions. They argue that the appellant’s submissions fail to grapple with this structure.

63    The respondents submit that, as was identified in Bramich v Transport Workers Union of Australia (2000) 97 FCR 204, there is no requirement on a Union to provide autonomy to its Branches. The degree of control to be exercised over Branches and Branch Divisions is a matter for the Union. In this case, the ultimate supervision of the affairs of the Branch Divisions is vested in the Branch. In turn, the Rules provide guaranteed representation on the Branch Executive and Branch Council to the Branch Divisions according to their size.

64    The respondents submit that while it is true to say that the Rules could specify either a specific amount of money or a percentage of revenue that is to be provided to the Branch Divisions, the mere fact that the Rules might state those things says nothing about whether the specified amounts or percentages would be sufficient. The question of what is sufficient for the Branch Divisions to discharge their responsibilities depends on any number of factors that change from time to time.

65    The respondents submit that collectivisation of resources is a concept that lies at the heart of an employee organisation registered under the Act. The allocation and application of those resources is a value judgment. They submit that two things necessarily flow from that: first, the considerations informing those judgments will vary from time to time; and, second, someone or some entity must make those judgments. They submit that the Rules of the Union repose the judgment about financial resources in the Branch Executive.

66    The respondents submit that, contrary to the appellant’s submission, the Rules are not silent on the question of funding for Branch Divisions. The determination of that question, which must vary from time to time, is given to the principal administrative unit, the Branch. The provisions that provide for the democratic control of the Branch safeguard the members’ interests. If the Branch representatives are not answering the question correctly, then the democratic solution is for those representatives to be changed.

67    The respondents observe that rule 21(8) provides that a Branch Divisional Fund shall consist of, amongst other things, any monies received from the Branch. Rule 21(10) provides that where expenses of the Branch Division are met by the Branch, the Branch shall be entitled to reimbursement from the Branch Division from income derived from the Branch Divisional Fund. The respondents submit that these rules indicate that the Branch has two options. It can disburse money to the Branch Divisional Fund, in which case the Branch Division can meet its own expenses. Alternatively, the Branch can make payment in respect of expenses relating to the operations of the Branch Division. If the Branch chooses to meet the expenses itself, it can only seek reimbursement from the income of the Branch Division, which is generated from investments. That is, the reimbursement comes from income that was not part of the Branch’s income stream.

68    The respondents submit that there was no error in the judgment of the primary judge.

Consideration

69    The appellant’s grounds of appeal allege, in summary, that the primary judge erred by failing to hold that the Rules impose conditions, obligations or restrictions upon members allocated to the VLD that are oppressive, unreasonable or unjust. More specifically, the appellant complains that:

(a)    the Rules fail to make specific provision for funds to be provided to the VLD to enable the VLD to carry out its prescribed functions under the Rules;

(b)    the Rules do not contain any requirement that the VLD be provided with a sufficient proportion of membership contributions to enable the VLD to effectively discharge its prescribed duties and functions under the Rules.

70    Section 142(1)(c) of the Act provides, relevantly, that the rules of an organisation:

…must not impose on…members, of the organisation, conditions, obligations or restrictions that, having regard to Parliament’s intention in enacting this Act (see section 5) and the objects of this Act and the Fair Work Act, are oppressive, unreasonable or unjust;

71    Where the rules of an organisation contravene s 142(1)(c), the Court retains a discretion whether to make a declaration under s 163(2) or s 164B(3): see R v Spicer; Ex parte Foster (1958) 100 CLR 163 at 168; Cook v Crawford (1982) 43 ALR 83 at 156–158.

72    Section 142(1)(c) requires that regard must be had to the objects of the Fair Work Act. Section 3 of the Fair Work Act refers, inter alia, to recognition of the right to freedom of association and the right to be represented.

73    Section 142(1)(c) also requires that regard must be had to Parliament’s intention in enacting the Act. That intention is stated in s 5(1) and (2) to be to “enhance relations within workplaces” and “reduce the adverse effects of industrial disputation” by specified means, including by requiring organisations to meet the standards set out in the Act. Under s 5(3), those standards include ensuring that organisations are able to operate effectively; encouraging the efficient management of organisations; and providing for the democratic functioning and control of organisations. The expression “having regard to” requires that Parliament’s intention be taken into account, considered and given due weight: see R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 25 ALR 497 at 504, 508; Municipal Officers’ Association of Australia v Lancaster (1981) 37 ALR 559 at 578–579.

74    The first question is whether the absence of any rule requiring funding of the VLD would amount to the imposition of any “condition, obligation or restriction” on members allocated to the VLD. The appellant identifies the “condition” imposed by the Rules on such members as that their industrial representation is to be provided by the VLD but is to be provided without any allocation of funding. The asserted “obligation” is that the members’ elected representatives are to provide representation and administration of the VLD, but without any allocation of any funding. The asserted “restriction” is that the members are deprived of any source of revenue for the VLD to provide its representational functions. As was the case before the primary judge, the respondents do not dispute that the Rules may impose a relevant condition, obligation or restriction. Like the primary judge, we will proceed on the basis of the respondents’ apparent concession.

75    The second question is whether the primary judge erred in holding that the condition, obligation or restriction imposed by the Rules was not “oppressive, unreasonable or unjust”.

76    There is a lengthy history of provisions similar to s 142(1)(c) of the Act in Commonwealth statutes. Such provisions appeared in s 60(1)(d) (and then s 140(1)(c)) of the Commonwealth Conciliation and Arbitration Act 1904 (Cth); s 196(c) of the Industrial Relations Act 1988 (Cth); and s 196(c) (and then s 142(1)(c)) of Sch 1 to the Workplace Relations Act 1996 (Cth). The objects of such legislation, like the objects of the Act, included encouraging democratic control of registered organisations. In that context, the Court has consistently cautioned against too readily interfering with the rules of a registered organisation determined democratically by members and their elected representatives.

77    Accordingly, in Imlach v Daley (1985) 7 FCR 457 at 462–463, Evatt and Northrop JJ emphasised that:

[A]n organisation, provided it complies with the requirements of the Act, the regulations and its rules, is able to mould its internal structures as it thinks fit. It is not for the court to mould those structures to a form which the court considers desirable.

(See also Wright v McLeod (1983) 6 IR 203; 51 ALR 483.)

78    In McLeish v Kane (1978) 22 ALR 547, the Full Court observed at 557:

Our task, as we see it, is to have regard to rules and their reasonableness in the light of the manner they affect democratic control and the manner they may affect the viability of an organization. This is a task to which it is not possible to apply a formula.

79    In Municipal Officers’ Association of Australia v Lancaster, Deane J held at 589:

The constraints and restrictions imposed, by positive and negative requirements of the Act and Regulations, upon the freedom of the members of an organization to select, for themselves, the rules which they consider appropriate for their particular organization, are real and significant. It cannot, however, be too strongly stressed that, subject to those constraints and restrictions, the content of the rules of a registered organization is primarily a matter for the members. This Court has no authority generally to supervise the content of the rules or to require that the rules comply with what those constituting the court might see as preferable, desirable or ideal. To put the matter differently, it is for the members, or those entrusted by the members in that regard, to decide the content of the rules. The function of this Court is to determine, in accordance with ordinary judicial procedure, whether some provision or provisions of the rules adopted by, or on behalf of, the members can properly be described not merely as undesirable but as oppressive, unreasonable or unjust.

(Citations omitted.)

80    In Doyle v Australian Workers’ Union (1986) 12 FCR 197, the Full Court held at 205:

The starting point of any s 140 [Conciliation and Arbitration Act] case is the right of an organisation to choose its own rules and internal structures, within the framework provided by the Act.

81    In Municipal Officers’ Association of Australia v Lancaster, Deane J went on at 589–590 to consider when conditions, obligations or restrictions provided for by an organisation’s rules might be “oppressive, unreasonable or unjust”:

There is nothing in the context of s 140(1)(c) which would justify giving an expansive construction of the requirement that the conditions, obligations or restrictions imposed by the rules of an organization upon applicants for membership or members not be “oppressive, unreasonable or unjust”. Those three words are used objectively in the clause and each of them is to be given its ordinary strong meaning. Plainly, their meanings overlap and definition is liable to adulterate the strength which the words possess. Nonetheless, it seems desirable that I indicate the meaning which I ascribe to them. To be oppressive, a condition, obligation or restriction must be burdensome, harsh and wrongful. To be unreasonable, it must be immoderate and inappropriate. To be unjust, it must be contrary to right and justice and to ordinary standards of fair play.

(Citations omitted.)

82    These observations have been cited with approval in Imlach v Daley at 463 (Evatt and Northrop JJ); Moffitt v Vehicle Builders Employees’ Federation of Australia (1985) 11 IR 174 at 175 (Smithers, Keely and Wilcox JJ); Pearce v Vickers (No 2) (1995) 130 ALR 385 at 395 (Wilcox CJ and Moore J); Brown v Health Services Union (2012) 205 FCR 548 at [83]–[85](Flick J).

83    In Doyle v Australian Workers’ Union, the Full Court at 205–206 explained the importance of context in determining whether a rule is oppressive:

The primary justification for the existence of a rule of an organisation is simply that the organisation has adopted that rule. It is then necessary to apply s 140(1)(c) to the particular provision, measuring its effect. The Act assumes that the rules of an organisation may impose conditions, obligations or restrictions which are not oppressive, unreasonable or unjust. The mere imposition by the rules of conditions, obligations or restrictions is not evidence that those conditions, obligations or restrictions, are oppressive, unreasonable or unjust. Their effect must be examined, in the particular circumstances of the organisation, and by reference to both the objects of the Act, and the purposes of the registration of organisations under the Act. … In undertaking this process, it may be that the Court will look for some rational explanation for the presence of a particular rule, or some such explanation may be advanced in justification of a rule.

84    The rules must also be examined in the context that the fundamental purpose of a registered organisation is to promote the interests of its members, and the rules of an organisation are intended to allow the organisation to operate effectively and viably towards achievement of that objective. In Allen v Townsend (1977) 31 FLR 431, Smithers J observed at 437–438:

The rules of the federation deal in considerable detail with the organization of the federation and the mutual relationships of the organization and the branches and the administrative authority of their managing councils and committees and officers. They thus provide the administrative machinery for the organization to carry on its business. That business is the promotion of the interests of the members as set out in the statement of its objects. It is the performance of that business which is the raison d’être of the existence of the federation. It is the purpose of the rules to establish an organization every part of which is to engage in the promotion of those interests. Each administrative section of membership created by the rules is thus concerned with a dual aspect of union life, namely administration of union government according to the rules, and conduct of a substantive kind for promoting the industrial and other interests of the members specified in the statement of objectives. This conduct is not particularized in the rules. There is no need to do so.

85    The appellant summarised his case in the following way in his written submissions in reply:

…the issue on appeal is whether the Rules are oppressive, unreasonable or unjust because they do not guarantee any funds to the VLD in the circumstances where the Rules impose obligations on the VLD to administer the affairs of its members.

86    In his oral submissions, the appellant contended that:

[The VLD] is given functions to perform, but there’s no provision for the funding to perform those functions. Now, that’s the essence of our complaint.

87    The appellant also submitted that, “the Rules should provide a prescription that funds be provided”; and, “where you have a governing body higher up in the hierarchy, which has, effectively, an uncontrolled discretion to dole out money or not dole out money, that’s not satisfactory”.

88    These passages reveal several interrelated difficulties with the appellant’s argument.

89    First, the appellant’s argument proceeds upon a premise that the Rules do not require the Victorian Branch to fund the VLD when, as will be seen, that premise is not established.

90    Second, the Act and the Rules provide for democratic control of the Union, its Branches and Divisional Branches, including over the Union’s funds and the content of the Rules. That includes hierarchies of decision-making power by officers who have been elected by members. When considering whether the Rules are oppressive, unreasonable or unjust, the objective of democratic functioning and control of organisations is required to be considered as part of the standards mentioned in s 5(3) of the Act, but that matter was glossed over in the appellant’s submissions.

91    Third, the appellant does not assert that the provisions of the Rules which impose obligations on the VLD are themselves oppressive, unreasonable or unjust. Rather, the appellant’s complaint is about the absence of any rule requiring the provision of funding, or sufficient funding, for the VLD. An assertion that the Rules are oppressive, unreasonable or unjust because of the absence of a rule naturally calls for identification of what the content of the missing rule might be (see also s 163(7) of the Act which deals with alteration of rules after the Court has made a declaration they contravene s 142) and consideration of whether it would provide a practicable solution to the asserted problem. However, what such a rule might look like was only outlined by the appellant in the most general way.

92    Fourth, the appellant’s argument proceeds upon an assumption that it is only necessary to consider how the Rules may affect members within the VLD. However, the defect asserted to exist in the Rules would affect not just the VLD, but all Branch Divisions (and, for that matter, Sub-Divisions), and therefore all members of the Union. This is not the more usual type of case where the rules of an organisation are alleged to discriminate against a particular class of members: see, for example, Bramich v Transport Workers Union of Australia at [36]; Municipal Officers’ Association of Australia v Lancaster; Doyle v Australian Workers’ Union. As the appellant seeks to effectively require the imposition of a uniform basis for calculating funding to the various Branch Divisions, consideration is required to be given to the effect of such a change upon the Branch Divisions and members as a whole.

93    In assessing the appellant’s argument, an appropriate starting point is to identify the obligations imposed by the Rules upon each Branch Divisional Committee and, therefore, upon each Branch Division. Rule 58(1) provides:

Each Branch Division shall have a Branch Divisional Committee. Subject to these Rules and the policies and decisions of the National Council, the National Executive, the Branch Council and the Branch Executive, the Branch Divisional Committee shall have management of those aspects of the Branch’s operations which affect members of the Branch Division only.

94    The Branch Divisional Committee’s function is to manage, “those aspects of the Branch’s operations which affect members of the Branch Division only”. The objects of the Union listed in rule 5 are as broad as improving, protecting and fostering the best interests of members; taking all necessary steps and actions for the purpose of securing satisfactory industrial and working conditions, remuneration and other conditions; obtaining preferential treatment for members in their employment; and assisting members to address grievances. The extensive array of objects demonstrates that the operations of a Branch, and consequently a Branch Division, are potentially very broad.

95    Rule 8(1) provides that every member is to be allocated to a Branch Division. The Rules envisage that the Branch Divisional Committee will, at least substantially, undertake or arrange the representation of members allocated to the Branch Division (rule 58(1)); and that each Branch Division will retain a degree of autonomy in the management of their operations (rules 58(1), 21(8), (11) and (12)). That is a reflection of the history of amalgamation of the four organisations which formed the Union. It can be accepted that the Rules envisage not only a broad range of operations by Branch Divisions, but a need for funding to allow them to carry out their operations.

96    However, the extent of the responsibilities of Branch Divisions fall for consideration in the context of the overall organisational and decision-making structure established under the Act and the Rules. Under s 27(a) of the Act, a registered organisation is a body corporate. A Branch or Branch Division has no separate corporate character but is, “an integral part or section of the whole federation having that degree of autonomy which is permitted to it by or under the constitution of the federation”: see Williams v Hursey (1959) 103 CLR 30 at 81 (see also 89, 130). While members “belong” to a Branch (rule 7(1)) and are “allocated” to a Division (rule 8(1)), the members are members of the Union, not a Branch, Division or Branch Division: see s 166 of the Act; rules 10 and 17 of the Rules; Williams v Hursey at 130. Further, under rule 21(1), “Branch Funds” and “Branch Divisional Funds” are part of “[f]unds of the Union”. While such funds are administered by a Branch or Branch Division, they do not belong to a Branch or Branch Division. The degree of autonomy of any Branch Division is confined within and by the hierarchy of decision-making authority established by the Rules.

97    The Rules do not provide for a Branch Division to be directly funded by members who are allocated to that Branch Division. Instead, rule 11(1) requires that members pay subscriptions, entrance fees and levies, “to the relevant Branch Secretary”. Under rule 21(4)(ii), a Branch Fund includes, “the amount of subscriptions received by the Branch less any amount payable to the National Organisation by way of capitation fees”.

98    The appellant’s submission that the Rules make “no provision” for funding by Branches to Branch Divisions for the discharge of their duties cannot be accepted. Rule 21(4) requires that the Branch Fund, “shall be used for the administration and management of the Branch…”. A “Branch Division” is defined in rule 3 as a National Division “operating within a Branch” and is a constituent part of a Branch. The “administration and management of the Branch”, accordingly, encompasses the administration and management of a Branch Division. The respondents concede that rule 21(4) requires a Branch Council and Branch Executive to use Branch Funds for the administration and management of Branch Divisions.

99    However, the appellant submits that on its proper construction, rule 21(4) only requires that Branch Funds be used for the administration and management of “the Branch as the Branch”, but not for the administration and management of Branch Divisions. In support of that construction, the appellant relies on rule 21(9), which provides that, “[a]ll liabilities arising out of the administration and management of the Branch Division…shall be the responsibility of the Branch Division”. The appellant argues that rule 21(9) would not be needed if rule 21(4) provided for funding of Branch Divisions.

100    In response, the respondents point out that under rule 21(8), a Branch Divisional Fund includes, “any monies received from the Branch”, and submit that rule 21(4) envisages that a Divisional Branch is to be funded by the Branch in one of two ways: either the Branch may make payments to a Branch Division and the Branch Division is then responsible for meeting its expenses pursuant to rule 21(9); or the Branch Division pays the expenses it incurs and then recovers the amounts from the Branch.

101    As has been observed, the Rules allocate each member to a Branch Division (rule 8(1)) and impose obligations on each Branch Division (rule 58(1)), but require the members to pay subscriptions, entrance fees and levies to a Branch (rule 11(1)), which become part of the Branch Funds administered by the Branch Council and Branch Executive (rule 21(4)). It can be accepted that if the Rules failed to require the Branches to provide funding to any Branch Division to carry out its operations, the Rules would be productive of oppression, unreasonableness or injustice to members within that Branch Division. However, as the Rules are intended to facilitate the effective governance of the Union in pursuance of the best interests of its members, it should not readily be inferred that the Rules are intended to operate in a way that is oppressive, unreasonable or unjust to its members. The respondents’ construction of the relationship between rule 21(4) and rule 21(9) is the preferable one. The proper construction of rule 21(4) is that a Branch is required to use Branch Funds for the administration and management of the Branch as whole, including its constituent Branch Divisions.

102    It should be observed that rule 21(9) is only relied on by the appellant for an argument that rule 21(4) applies to funding of “the Branch as the Branch”. The appellant concedes that it is not part of his argument that any conditions, obligations or restrictions on members arising under rule 21(9) are themselves oppressive, unreasonable or unjust.

103    Accordingly, the appellant’s submission that the Rules, “do not guarantee any funds to the VLD”, cannot be accepted.

104    A second aspect of the appellant’s argument is that Rules are oppressive, unreasonable or unjust because they fail to guarantee a level of funding for the VLD that is adequate for the conduct of its operations. However, the appellant’s submissions failed to explain precisely how a rule could be drafted that would provide for a guaranteed minimum level of each Branch Division (and, for that matter, each Sub-Division with responsibilities under the Rules). The appellant submits that a rule could fix the amount of funding for each Branch Division at a particular percentage of a Branch’s income, but did not suggest what that percentage should be, or how it ought to be determined. The appellant submitted, alternatively, that there could be a rule requiring that a Branch, after deducting its expenses from the subscriptions, distribute the surplus to its Branch Divisions in proportion to their number of allocated members.

105    There are difficulties with either model suggested by the appellant which may themselves be productive of oppression, unreasonableness or injustice. Self-evidently, the need for funding will vary from time to time within a Branch Division and will also vary amongst Branch Divisions. The number of members for whom each Branch Division is responsible will be different. The need for representation of members by each Branch Division will change, depending upon all manner of factors such as economic conditions, technological changes, redundancies, bargaining for enterprise agreements and legislative and regulatory changes. So, for example, where an industrial issue arises affecting the members attached to a particular Branch Division, there may be a substantially greater need for greater funding of that Branch Division and a consequential need to reduce funding to other Branch Divisions from the Branch’s finite resources. There may be, from time to time, a need for more funding for a particular Branch Division than can be provided from the subscriptions of members attached to that Branch Division, suggesting that the appellant’s suggestion of a model by which the Branch must pay to each Division a fixed proportion of the subscriptions paid calculated according to the number of members attached to each Division may be impracticable.

106    Further, a Branch Divisional Committee’s operations are expressed in rule 58(1) to be, “[s]ubject to these Rules and the policies and decisions of the National Council, the National Executive, the Branch Council and the Branch Executive”. Such policies and decisions can affect the nature, extent and cost of services provided by a Branch Division to members, which may in turn affect the funding needs of a Branch Division. It is readily understandable, for example, that policies may be implemented to limit wastage of resources through inefficiency or extravagant spending. It is unnecessary to consider the precise extent to which the Rules may allow such policies and decisions to affect the functions of a Branch Division: cf Bramich v Transport Workers’ Union of Australia at [36]. It is enough to observe that the expenses of a Branch Division and its need for funding may change from time to time in accordance with policies and decisions made by the relevant governing bodies.

107    The adoption of models of the type suggested by the appellant which fix funding at a particular percentage or by a particular formula would lack the flexibility that the Rules presently provide by entrusting the decision-making concerning funding under rule 21(4) to each Branch Committee and Branch Executive. While the respondents do not carry any onus of justifying a challenged rule by reference to the good governance of the organisation (Doyle v Australian Workers’ Union at 205–206), the fact that they have demonstrated a clear, logical and cogent basis for the present rules for the making of funding decisions means that the failure of the Rules to adopt a different model is unlikely to be oppressive, unreasonable or unjust.

108    The appellant submits that even if rule 21(4) requires the provision of funding, it confers a discretion on the Branch Council and the Branch Executive as to the amount and terms of funding and the potential for misuse of that discretion makes the Rules oppressive, unreasonable or unjust. The appellant relies on Hodder v Australian Workers’ Union (1985) 9 FCR 498, where Pincus J held at 502:

To some extent the argument before me proceeded on the assumption that it was the practical operation of the rules, as demonstrated by past experience, which had to be considered, rather than the operation of which they are capable…Like the constitution of a nation, the rules of a union, whatever their content, may from time to time be applied in a fair or unfair way. It is not their mode of application, as it may appear to the Court at the date of a hearing, which section 140(1)(c) requires to be examined, but their true effect.

109    The appellant submits that it is necessary to examine how the Rules may operate, not how they have been applied from time to time. The appellant argues that, “the Rules should provide a prescription that funds be provided, not that they might be provided depending on what side of the bed you got out of on a particular day or the political alignment of the branch people with the divisional people and so on”.

110    However, r 69(1) provides:

A person holding an Office within the Union shall carry out his/her role in an honest, competent and diligent manner. He/she shall abide by these Rules and the policies and decisions of the Governing Bodies of the Union.

111    Further, s 287(1) of the Act expressly prohibits an officer of an organisation or a branch from improperly using their position to cause detriment to the organisation or to another person. Further, s 286(1) of the Act requires that officers of an organisation or a branch exercise their powers and discharge their duties: (a) in good faith in what they believe to be the best interests of the organisation; and (b) for a proper purpose. It may be noted that s 283 restricts the application of s 287 to the exercise of powers and duties related to the financial management of the organisation or branch. Section 286(1) makes express what was held by Evatt and Northrop JJ in Scott v Jess (1984) 3 FCR 263 at 269 to be implicit:

Officers of an organisation are under a duty to exercise powers conferred upon them by the rules of the organisation bona fide for the purposes for which the powers are conferred. That is a statement of principle having general application to officers of organisations.

(See also Allen v Townsend at 483 (Evatt and Northrop JJ).)

112    The appellant’s argument that the Rules are deficient by their failure to provide protection against the potential for misuse of the power to make funding decisions cannot be accepted.

113    The appellant’s argument fails to acknowledge that the decision-making structure of the Union is ultimately determined by the members under a democratic process. A concept that lies at the heart of any employee organisation is protection of the interests of all its members through collectivisation of resources. The decision-making model adopted under the Rules recognises that allocation and application of the Union’s resources will involve value judgments. Two things necessarily flow from that: first, the considerations informing those judgments will vary from time to time; and, second, some group of persons must make those judgments. Under the Rules, such judgments are to be made by the Branch Council and Branch Executive.

114    The Branch Council is the highest deliberative body in a Branch, but its powers are subject to the policies or decisions of the National Council or the National Executive (rule 42(1)). The functions of each Branch Divisional Committee are also subject to the policies and decisions of the National Council and Executive and the Branch Council and Executive (rule 58(1)). Each Branch Sub-Division has such operations as are determined by a Branch Divisional Committee (rule 59(1)). Each of these offices is determined by election (rule 70 and s 182(1) of the Act). The Rules accordingly establish democratic structures and processes to determine who are the persons entrusted with making decisions in the best interests of its members. The Rules entrust to each Branch Council and Branch Executive the power and responsibility to make decisions about the allocation of resources to Branch Divisions that fulfill the objects of the Union.

115    The National Council has power (rule 87(1)) to rescind, alter or amend the Rules. The members of the National Council are ultimately subject to democratic election by the members (see rules 28 and 29). The legislative intention expressed in s 5 of the Act makes it plain that it is generally for the members of a registered organisation and their elected representatives to decide the content of the rules.

116    As Deane J explained in Municipal Officers’ Association of Australia v Lancaster at 589, the words “oppressive, unreasonable or unjust” are to be given their “ordinary strong meaning”. It is not enough for the appellant to merely point to some alternative form of model for funding of Branch Divisions that might be seen as desirable or even preferable.

117    The appellant has not demonstrated any error on the part of the primary judge in determining that the Rules do not impose on members of the Union conditions, obligations or restrictions that are oppressive, unreasonable or unjust.

118    The appeal must, accordingly, be dismissed.

Associate:    

Dated:    4 March 2025

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